Free Reply to Opposition - District Court of California - California

Case 3:07-cv-02952-WHA

Document 100

Filed 12/26/2007

Page 1 of 3

1 2 3 4 5 6 7 8 9 10

James P. Walsh, CSB. No. 184620 Gwen Fanger, CSB No. 191161 DAVIS WRIGHT TREMAINE LLP 505 Montgomery Street, Suite 800 San Francisco, California 94111-3611 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 [email protected] Attorneys for Defendants and Claimant BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), the F/V POINT LOMA and Claimant, F/V POINT LOMA Fishing Company, Inc.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION DEL MAR SEAFOODS, INC., Plaintiff, v. BARRY COHEN, CHRIS COHEN (aka CHRISTENE COHEN), in personam and, F/V POINT LOMA, Official Number 515298, a 1968 steel-hulled, 126-gross ton, 70.8 foot long fishing vessel, her engines, tackle, furniture apparel, etc., in rem, and Does 1-10, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

DAVIS WRIGHT TREMAINE LLP

11 12 13 14 15 16 17 18 19 20

No. C-07-2952-WHA DEFENDANTS REPLY IN SUPPORT OF MOTION FOR A PROTECTIVE ORDER LIMITING THE DEPOSITION OF CHRISTENE COHEN PURSUANT TO FRCP 26(c) Date: January 3, 2008 Time: 8:00 a.m. Place: Courtroom 9, 19th Floor

Pursuant to Civil Local Rule 7-1 and Fed. R. Civ. P. 26(c), Defendants, Barry A. Cohen

21 and Chris Cohen (the Cohens ), the vessel F/V POINT LOMA (the Vessel ) and Claimant F/V 22 Point Loma Fishing Company, Inc. (collectively, Defendants ), have filed a Motion for a 23 Protective Order Limiting the Deposition of Christene Cohen ( Motion for Protective Order ). On 24 December 26, 2007, Defendants filed an Opposition to the Motion. The Cohens submit this Reply 25 to various points raised in that Opposition. 26 1. This case concerns a written Promissory Note and a Preferred Ship Mortgage on

27 the Vessel securing that Note. The Cohens have stipulated to the fact that they signed both signed 28
1
DEFS MOTION PROTECTIVE ORDER :REPLY Case No. C-05-3927-CW SFO 400787v1 0084289-000001

Case 3:07-cv-02952-WHA

Document 100

Filed 12/26/2007

Page 2 of 3

1 the Note and the Mortgage and that they made a $175,000 advance payment to Plaintiff on the 2 Note. It is therefore not necessary to depose Mrs. Cohen on these essential facts. 3 2. Plaintiff asserts that additional amounts were added to the Note through oral

4 agreements entered into by Mr. Cohen and representatives of the Plaintiff, Del Mar Seafoods, Inc., 5 Mr. Joseph Roggio and Mr. Joseph Cappuccio. In their recent depositions, Mr. Roggio and Mr. 6 Cappuccio stated, under oath, that neither of them had any business dealings with Mrs. Cohen 7 with respect to these matters. See Declaration of Gwen Fanger in Support of Motion, at ¶ 11 and 8 12, citing to the deposition transcripts at Ex. K and L. 9 3. Plaintiff has acceptable alternatives with respect to obtaining discoverable

10 information relating to the oral agreements in question and the damages to the Cohens caused by

DAVIS WRIGHT TREMAINE LLP

11 the arrest of the Vessel. Mr. Cohen, who was responsible for the Vessel s management, will be 12 deposed in early January, 2008. Another source of information with respect to the Vessel is the 13 Captain, who will be deposed on January 8, 2008. 14 4. Both Mr. and Mrs. Cohen have stated they plan to assert their marital privileges

15 against disclosure of any dealings between and among them with respect to the issues in this case 16 in any deposition. By asserting the privileges in their Declarations in Support of the Motion, both 17 Mr. and Mrs. Cohen have asserted their right to confidentiality in their discussions. 18 5. Plaintiff, in searching for reasons to oppose the Motion, comes up with the

19 following arguments (Plaintiff s Opposition at 5) as to the information supposedly only Mrs. 20 Cohen can provide, to which Defendants reply. 21 a. Amount secured by the Note. The Note speaks for itself. Mrs. Cohen s

22 testimony will not be admissible, under the parol evidence rule, to vary the terms of the written 23 agreement. Because Plaintiff cannot establish that she did anything other than sign the Note, they 24 have no compelling reason to depose her on the issue. 25 b. Any oral agreements by Mr. Cohen with respect to Advances. Again,

26 because the representatives of Plaintiff have already stated that Mrs. Cohen had no business 27 dealings with the company on the issues at hand, any questions on this point would be confidential 28
2
DEFS MOTION PROTECTIVE ORDER :REPLY Case No. C-05-3927-CW SFO 400787v1 0084289-000001

Case 3:07-cv-02952-WHA

Document 100

Filed 12/26/2007

Page 3 of 3

1 discussions between husband and wife with respect to such advances. Plaintiff has alternative 2 sources for such information. 3 c. Effect of the $175,000 payment on the monthly payments under the Note.

4 This is strictly a legal question, to which Mrs. Cohen need provide not respond. 5 d. Defendants Claim for Damages. Mr. Cohen, and the Captain of the Vessel,

6 will be providing answers to these questions. Mr. Cohen was the manager of the Vessel, not Mrs. 7 Cohen. 8 6. Contrary to Plaintiff s claim, Defendants conferred in good faith to try to resolve

9 the issue of Mrs. Cohen s deposition. In response, Plaintiff s counsel posed numerous inquires 10 that had to be answered before even considering the request. Because of the testimony of

DAVIS WRIGHT TREMAINE LLP

11 Plaintiff s representatives, it became clear that Mrs. Cohen deposition was not likely to add 12 anything to the case but would offer opportunities for Plaintiff to go on fishing expeditions into 13 matters totally unrelated to this lawsuit and its expense would far outweigh its discovery and 14 evidentiary value. In fact, much of Plaintiff s discovery appears aimed to investigating reasons as 15 to why the Vessel should be seized, investigations that should have taken place prior to the 16 Vessel s arrest by this Court. Mrs. Cohen s discussions, if any, with her husband on these matters 17 would be strictly between them, protected by the marital privilege. 18 19 20 21 22 23 24 25 26 27 28
3
DEFS MOTION PROTECTIVE ORDER :REPLY Case No. C-05-3927-CW SFO 400787v1 0084289-000001

DATED this 26th day of December, 2007. Respectfully submitted, /s/ James P. Walsh James P. Walsh (CSB No. 184620) DAVIS WRIGHT TREMAINE LLP 505 Montgomery St., Suite 800 San Francisco, CA 94111-3727 Telephone: (415) 276-6500 Facsimile: (415) 276-6599 Attorneys for BARRY COHEN, CHRIS COHEN, F/V POINT LOMA and the F/V POINT LOMA FISHING COMPANY, INC.